Citation Nr: 0716160
Decision Date: 05/31/07 Archive Date: 06/11/07
DOCKET NO. 00-19 716A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Chris Yegen, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1977 to July
1983.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 1997 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Atlanta, Georgia, which denied service connection for PTSD.
FINDING OF FACT
The veteran has PTSD as a result of service.
CONCLUSION OF LAW
PTSD was incurred in active service. 38 U.S.C.A. § 1131
(West Supp. 2005); 38 C.F.R. §§ 3.303, 3.304(f) (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service connection may be granted for a disability resulting
from a disease or injury incurred in or aggravated by
service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service
connection for PTSD requires the presence of three elements:
[1] a current medical diagnosis of PTSD (presumed to include
the adequacy of the PTSD symptomatology and the sufficiency
of a claimed in-service stressor), [2] credible supporting
evidence that the claimed in-service stressor(s) actually
occurred, and [3] medical evidence of a causal relationship
between current symptomatology and the specific claimed in-
service stressor(s). See 38 C.F.R. § 3.304(f).
The Board notes that Congress amended 38 C.F.R. § 3.304(f)
during the pendency of this appeal. This amendment, which
became effective March 7, 2002, addresses the type of
evidence that the Board may consider relevant in
corroborating the occurrence of a stressor in claims for
service connection for PTSD resulting from a personal
assault.
In these types of claims, VA permits a veteran to present
evidence from sources other than their military records to
corroborate the veteran's account of the stressor incident.
Examples of such evidence include, but are not limited to:
records from law enforcement authorities, rape crisis
centers, mental health counseling centers, hospitals or
physicians; pregnancy tests or tests for sexually transmitted
diseases; and statements from family members, roommates,
fellow service members, or clergy. 38 C.F.R. § 3.304(f)(3).
Evidence of behavior changes following a claimed assault is
one type of relevant evidence that the Board may take into
account. Examples of behavior changes that may constitute
evidence of the stressor include, but are not limited to: a
request for a transfer to another military duty assignment;
deterioration in work performance; substance abuse; episodes
of depression, panic attacks, or anxiety without an
identifiable cause; or unexplained economic or social
behavior changes. VA may submit any evidence that it
received to an appropriate mental health professional for an
opinion as to whether it indicates that a personal assault
occurred. Id.
In Patton v. West, 12 Vet. App. 272, 277 (1999), VA
established special procedures for evidentiary development of
claims for PTSD based on personal assault. The Court advised
that the portions of the VA Adjudication Procedure Manual
M21-1, Part III, paragraph 5.14c, provide "guidance on the
types of evidence that may serve as 'credible supporting
evidence' for establishing service connection of PTSD which
allegedly was precipitated by a personal assault during
military service."
Manual M21-1 lists evidence that might indicate such a
stressor including lay statements describing episodes of
depression; panic attacks or anxiety but no identifiable
reasons for the episodes; visits to medical clinics without a
specific ailment; evidence of substance abuse; and increased
disregard for military or civilian authority. The Manual
also lists behaviors such as requests for change of MOS or
duty assignment, increased use or abuse of leave, changes in
performance and performance evaluations, increased use of
over-the-counter medications, unexplained economic or social
behavior changes, and breakup of a primary relationship as
possibly indicative of a personal assault, provided that such
changes occurred at the time of the incident. The Court held
that the provisions in M21-1, Part III, 5.14(c), which
address PTSD claims based on personal assault, are
substantive rules which are the equivalent of VA regulations,
and therefore; they bind VA decisions. YR v. West, 11 Vet.
App. 393, 398-99 (1998); Patton, 12 Vet. App. at 272.
In the instant case, the veteran alleges that her immediate
supervisor sexually assaulted her on numerous occasions in
the military. In February 2006, the Board remanded her case
for a compensation examination to determine whether she has
PTSD; and if she does, to determine the credibility of her
stressors. The Board finds that the preponderance of the
evidence supports the veteran's claim.
In July 2006, a compensation examination diagnosed the
veteran with chronic PTSD. The examiner noted that while the
veteran's service medical records do not clearly prove that
numerous sexual assaults occurred in service, there are
several visits to physicians with complaints of
dysmenorrheal, a couple of mental health consults, and a
culture for possible sexually transmitted diseases. Indeed,
the RO discounted the veteran's mental health consult in
January 1982 due to difficulties associated with her divorce.
In contrast to the RO's analysis, the M21-1 Manual considers
behavior changes, including the breakup of a primary
relationship, as possible evidence of a potential stressor.
Hence, the Board disagrees with this finding and notes that
the incident provides some probative evidence in favor of her
claim.
The examiner also noted that the veteran reported recurring
distressing dreams, avoidance of thoughts and conversations
associated with the alleged stressor, avoidance of activities
and people that reminded her of the alleged stressor,
decreased participation in significant activities, and
feelings of detachment from others.
It thus appears that the veteran demonstrated some behavioral
changes in service following the alleged sexual assault.
Therefore, resolving all reasonable doubt in the veteran's
favor, the Board accepts her behavior changes as sufficient
evidence that a sexual assault occurred in service. See
Ashley v. Brown, 6 Vet. App. 52, 59 (1993), citing 38
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (under the "benefit-
of-the-doubt" rule, where there exists "an approximate
balance of positive and negative evidence regarding the
merits of an issue material to the determination of the
matter," the veteran shall prevail upon the issue).
Hence, the Board finds that the evidence supports the
veteran's claim of entitlement to service connection for
PTSD. The aforementioned evidence establishes a diagnosis of
PTSD, credible supporting evidence that a claimed in-service
stressor actually occurred, and a link, established by the
medical evidence, between her PTSD and a verified in-service
stressor. See 38 C.F.R. § 3.304. Accordingly, the Board
finds that the evidence supports her claim of service
connection for PTSD.
In light of the favorable outcome, there is no need to engage
in any analysis with respect to whether the RO satisfied the
requirements of the Veterans Claims Assistance Act of 2000
(VCAA). U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West
Supp. 2005)). In other words, the Board finds that no
further notification or assistance would be helpful, and
deciding the appeal at this time is not prejudicial to the
veteran. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993).
ORDER
Entitlement to service connection for PTSD is granted.
____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs